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..Gary Roberts, currently Deputy Dean of Tulane Law School and Director of that school's Sports Law program, has been appointed the Dean of Indiana-Indianapolis. Though Dean Roberts is best known for his Sports Law work, he also has the good sense to teach Labor Law on a regular basis.

As the title suggests, the book is organized around the enduring conflict between private ordering and public mandates in the workplace. There is a constantly changing border between the default rule allowing employers and workers to structure their relationships (usually to the employer's specifications) and public policy limits on that approach. This provides a lens that makes the course more coherent for students and, hopefully, even for teachers.

With that as the thematic backdrop, the book approaches traditional topics in innovative ways, such as devoting a chapter to accommodating workers’ lives and another to risk management techniques – often the bread and butter of employment practice. It also is especially attentive to increasing concerns regarding employer-employee competition. Overall, the book strikes a balance between a traditional litigation orientation and the counseling/planning perspectives that prevail in many employment-law practices, whether for employer or employee.

The book is published by Aspen, and though I received my review copy yesterday, Aspen does not appear to have the book up on its website yet.

The Federal Arbitration Act (FAA) was
created in 1925 to permit judicial enforcement of arbitration
agreements covering commercial contract disputes between parties with
roughly equal bargaining power. Today, however, the FAA is the legal
authority for judicial enforcement of arbitration agreements covering
not only contractual claims but also statutory claims, and not only of
disputes between commercial entities but also disputes involving
parties with grossly disparate bargaining power such as companies and
employees/consumers. Moreover, the Supreme Court has interpreted the
FAA as strongly favoring arbitration, and the Court has used preemption
analysis to restrict the ability of states to regulate arbitration
agreements. This has led many commentators to argue that the FAA is
ill-suited to its new use - that it is unfair to permit companies to
foist arbitration agreements on employees and consumers who have little
understanding of what they are signing, and in any event have no
meaningful choice if they want the job or product or service the
company is offering.

In
1990, Congress faced a similar problem in a different context. Congress
was amending the Age Discrimination in Employment Act (ADEA) to
prohibit employers from discriminating on the basis of age in the
administration of employee benefit plans. Congress wished to give
employees the ability to agree to early retirement and to settle
benefits claims, but was concerned that employers would coerce older
employees into accepting grossly unfair agreements that the employees
did not understand. Congress responded by passing the Older Workers
Benefit Protection Act (OWBPA ). The OWBPA presumes that a waiver of
ADEA rights is not knowing and voluntary (and therefore is
unenforceable) unless certain procedural requirements are met. For
example, the waiver must be written in a manner calculated to be
understood by an average employee, the employer must advise the
employee in writing to consult with an attorney prior to signing the
agreement, and the employer must give the employee at least twenty-one
days within which to consider the agreement.

This article
argues that Congress should amend the FAA to add suitably-modified
OWBPA-like notice requirements to arbitration agreements directed at
most employees and consumers. This approach will help ensure that
employees and consumers understand what it is they are signing, and
thereby may encourage some companies to draft arbitration agreements
that are substantively more balanced. This approach is not, however, a
panacea that will cure all the ills of arbitration, but instead is
designed as a politically feasible, incremental improvement on
employment and consumer arbitration.

Sounds like a practical solution to a glaring hole in current arbitration law. Here's hoping that Congress has, as I say to my son, its listening ears on.

Fresh off the presses today comes news that the Fourth Circuit Court of Appeals has affirmed the judgment of the District of Maryland that the Maryland Fair Share Healthcare Law (aka, the Wal-Mart Bill) is preempted by ERISA. The decision in RILA v. Fielder, No. 06-1840 (4th Cir. Jan. 17, 2007) is here.

A federal appeals court ruled today that Maryland violated federal law when it required Wal-Mart Stores
to increase spending on employee health insurance, in a decision that
appears likely to end a bitter yearlong legal battle that pitted state
legislators, organized labor and health care advocates against the
nation’s largest retailer.

The 2-to-1 ruling by a panel
of the United States Court of Appeals for the Fourth Circuit is a major
setback — if not a fatal blow — for a nascent campaign, called “fair
share,” that sought to move millions of America’s working poor off of
state-sponsored insurance programs, like Medicaid, and on to
employer-based plans.

************************************************************************But the appeals court, upholding a lower court ruling, found that
the Maryland rule violated a federal labor law intended to allow
companies to create a uniform system of health benefits across the
country, rather than navigate a patchwork of state-by-state
requirements.

By requiring employers in Maryland to restructure
insurance plans, the court found, the law “conflicts” with the intent
of the federal labor law, known as the Employee Retirement Income
Security Act, or ERISA.

One other point: I have not had the chance to read the 4th Circuit's opinion (and will update this post when I do), but the 2-1 split suggests that there is an outside chance for rehearing en banc or perhaps even Supreme Court review. The latter is less likely since there is not a circuit split on the issue and lower courts in general have not had the opportunity to weigh in on fair share legislation.

Aditya Bhattacharjea, Delhi School of Economics, has just posted his article Labour Market Regulation and Industrial Performance in India on SSRN. The article is obviously important to anyone studying the Indian labour market, but it's also relevant to a broader audience. For example, its questioning of the empirical assumption that increasing regulation stifles the quality and quantity of job growth is pertinent to the current American debate on raising the minimum wage. Here's the abstract:

This paper offers a critique of recent
empirical research on the impact of labour regulation on industrial
performance in India. It begins with a review of earlier studies that
tried to infer the effects on manufacturing employment of amendments
made by the central government to the Industrial Disputes Act (IDA) in
1976 and 1982, requiring official permission for layoffs, retrenchments
and closures. The results of these studies are ambiguous, and this
literature ignored crucial developments in the political and legal
spheres which vitiate many of these findings. The widely-used index of
state-level labour regulation devised by Besley and Burgess (Quarterly
Journal of Economics, 2004) is then criticised for its miscoding of
individual amendments and its misleading aggregation and cumulation
procedures. Their econometric results, which indicate that states that
enacted excessively pro-worker amendments to the IDA have displayed
poorer performance in manufacturing, do not appear to be robust and
also suffer from other methodological problems. Several recent studies
that have used the Besley-Burgess index are also surveyed, and their
limitations highlighted. Finally, the paper reviews a wide range of
other evidence, pointing in a very different direction, on the actual
enforcement of labour laws, labour flexibility, and industrial
employment. Throughout, attention is paid to the crucial role of
judicial interpretation of the IDA, which has been neglected in this
literature.

The NLRA's increasing obsolescence in the modern
workplace is well-documented. Nowhere is this problem more apparent than where
unions and employees use the Internet and other electronic communications to
further employees' collective interests. Electronic communications pose
significant challenges to several of the NLRB's anachronistic rules—-challenges
so great that, as explained by public choice theory, the NLRB's failure to adapt
sufficiently may result in the NLRA losing what little relevance it currently
possesses. Yet, I remain sanguine about the NLRA's survival. Rather than
representing its death knell, I am hopeful—-perhaps unrealistically so—-that the
NLRB's recent signal that it will comprehensively address these issues promises
change that the NLRA has long needed to become an effective and relevant statute
in the modern economy.

In what is appearing to be a trend, the inflatable cockroach has again shown its mandibles in New York City. Restaurant Opportunities Center (ROC), an organization started to help Windows on the World restaurant workers following 9/11, has organized protests--featuring the cockroach--against Daniel Boulud for engaging in racial discrimination at his very high-end restaurant, Daniel. Several employees have filed charges alleging that

dining room workers at Daniel have been denied promotion because they
were Latino or Bangladeshi. The employees also say that Mr. Boulud and
other managers yelled racial slurs. At one point, they say, Spanish was
banned among employees; only English and French were allowed. Those are
examples, they say, of how the working culture at Daniel favors white
Europeans at the expense of other groups.

This is not the first, and certainly not the last, time that a high-end restaurant has been accused of these types of actions. The story does a nice job of showing the tension that many restaurant employers face between providing an expected type of service and compliance with discrimination laws. It also illustrates that employers can find solutions to these problems if they make the effort.

One other interesting note is the ROC's transformation from a post-9/11 advocacy group to one that assists immigrants working in the city's restaurant industry. ROC's ability to use publicity techniques that the SEIU (e.g., Justice for Janitors campaigns) and others have found to be effective recently shows the power of these campaigns, especially against high-profile employers.

Well, can you ever be "too country"? Allegedly, even the Grand Ole Opry in Nashville thinks so based on this story on topix.net (by way of the AP):

Grand Ole Opry singer Stonewall Jackson filed a $10 million federal lawsuit Thursday against the long-running country music show and its management, claiming age discrimination, breach of contract and retaliation.

Jackson, 74, has been a member of the show since 1956. He had a string
of hits in the 1950s and '60s, including the No. 1s 'Waterloo' and
'B.J. the D.J.'

**********************************************************************************In the lawsuit, Jackson claims his appearances on the show declined after [general manager Peter] Fisher was hired in 1998.

Jackson
said he approached Fisher on several occasions and was told things
like, 'I don't want any gray hairs on that stage or in the audience,
and before I'm done there won't be any' and 'You're too old and too
country.'

In all seriousness, it always make me sad, regardless of the truth of the allegations, to see an employee who works for his whole life for one employer (here 50 years!) to have their employment relationship end in this manner. This guy should be given tribute dinners and Rolex watches galore!

STAND, STILL. The
U.S. Supreme Court has declined to consider an appeal brought by a group of IBM
Corp. employees who accused the company of age discrimination when it converted
its traditional pension plan to a cash balance design. Acting without comment, the justices let
stand a 7th U.S. Circuit Court of Appeals determination that IBM's switch to a
cash balance pension did not discriminate against older workers. That decision, in turn, overturned a July
2003 decision that the design was age discriminatory, claiming that it allowed
younger workers to accrue benefits in the plan at a faster rate than older
workers. Since then, a number of
district courts have split on the issue.

With the degree of disagreement in the lower courts, and the importance of the issue to so many workers, I cannot imagine this issue won't some day may its way back to the Court.

Interestingly, however, PlanSponsor.com reports that, "IBM's plans to
eliminate its cash-balance plan on January 1, 2008. IBM announced in
January 2006 that it will throw out the program and enhance its 401(k)
plan."

Tzvi Mackson-Landsberg, Is a Giant Inflatable Rat an Unlawful Secondary Picket Under Section 8(b)(4)(ii)(B) of the National Labor Relations Act?, 28 Cardozo L. Rev. 1519 (2006) [photo of rat above; see also Roach!, The New Yorker, Jan. 15, 2007 (explaining that the rat has been supplanted by a twelve-foot-tall inflatable cockroach, in an effort to circumvent the anticipated prohibition of the rat as a secondary picket].

HealthNewsDigest.com is reporting on a new national study that finds people with psychiatric disabilities do generally worse in employment disability discrimination claims.

According to the article:

The study team, which included researchers from three universities,
reviewed court settlements and judicial decisions from 4,114 cases
filed between 1993 and 2001. Team members also conducted telephone
interviews with a representative sampling of 148 plaintiffs who had a
psychiatric disability and 222 plaintiffs who had a physical
disability, to find out how they felt about the outcome of their case.

The researchers found that 37 percent of plaintiffs with psychiatric
disabilities received a settlement from the defendant or a court ruling
in their favor, compared with 49 percent of plaintiffs with physical
disabilities.

In this Article, we show how the adoption of
increasingly sophisticated forms of marketing and branding strategies
by service businesses creates property-like interests separate and
distinct from workers' physical and mental labor, from which employers
profit: “branded service.” We then analyze the role that law has played
in reinforcing the practice of branding.

*************************************************************We explore the marketing of branded service and the
law's response through an analysis of Jespersen v. Harrah's Operating
Co., in which the Ninth Circuit rejected a female bartender's Title VII
challenge to Harrah's “Personal Best” grooming and appearance policy,
which required (among other things) that women wear makeup, a practice
that Darlene Jespersen found both personally and sexually demeaning. We
examine the branded service strategy that Harrah's adopted, explain how
it created a new and valuable property-like right for Harrah's, and
describe Jespersen's reaction to her sexualized commodification.

**************************************************************Finally, we make suggestions for reframing claims
arising from branded service and the appearance and grooming codes
associated with it. We urge reconceptualization of sex-stereotyped
corporate branding as a collective harm to workers and evaluate avenues
of resistance, including union organizing and collective bargaining,
class-action sex discrimination or sexual harassment claims, and public
consciousness-raising by social justice and community groups.

This piece takes the debate over company appearance and grooming codes to a new conceptual level. This is a must-read, from two of the most accomplished law professors in the business, for anyone interested in sexual stereotyping in the workplace.

This essay is a contribution to a
symposium on balancing career and family. It frames the problem of
work/family conflict as a form of sex discrimination. It demonstrates
that many of the constructs commonly used to illustrate an absence of
employment discrimination in the context of work/family conflict - such
the “accident,” “opt-out,” “time-lag” theories - actually fit quite
comfortably within various discrimination frameworks. It also
contextualizes the problem of work/family conflict within the larger
issue of gender bias in the workplace, demonstrating how each
contributes to and works together to produce workplace inequality for
women. This approach contrasts with the traditional bifurcation of
gender bias and work/family conflict into distinct categories of
employment discrimination.

An important contribution to the continuing debate over workplace flexibility issues. Looking forward to reading this piece in more detail.

[T]here are many fees associated with 401(k)-plan stock funds.
Companies charge fees for portfolio management, fund administration,
shareholder service, and other miscellaneous costs. According to a recent
report by the U.S. Congress’ Government Accountability Office, these
investment fees make up between 80 and 99 percent of all plan fees, depending
on the number of participants in the plan. In addition, there are
record-keeping fees associated with maintaining participant accounts,
processing fund selections, and mailing account statements. These, too, cut
into your bottom line.

************************************************************************The Government Accountability Office and the Department of Labor want Congress
to amend federal pension laws to require mutual funds and 401(k) plans to
provide a summary of all fees that are paid out of plan assets or by
participants.

Look for Congress to enact some legislation this year, and look for all
investors to benefit. Our capital markets will work better if investors have
complete information about all investment and record-keeping fees.

This area of employee benefits law is an increasingly important one, especially as the number of class action suits based on unreasonably high plan fees begin to rise. Although the current law addresses some of these issues under ERISA Section 404(c) and its regulations as far as fiduciary liability, as Jon points out, there is likely going to be more legislation introduced this year so that plan participants can more easily discover information about such fees and keep more of their retirement savings.

A federal judge granted class-action status yesterday to a lawsuit
filed on behalf of more than 700 female workers at Costco claiming that
the retailer had systematically discriminated against women seeking
jobs as managers. Here’s the story from the New York Times.

The
lawsuit’s key statistic: 13 percent of the company’s store managers
were women, while nearly half of its employees were women. The case,
before Judge Marilyn Hall Patel of federal court in San Francisco,
smudges Costco’s image as a wonderful place to work. “Plaintiffs have
presented strong evidence of a common culture at Costco which
disadvantages women,” she wrote in her ruling.

Interestingly, the plaintiffs' lawyer, Brad Seligman (pictured above) who runs the non-profit Impact Fund, is the same attorney who brought the Wal-Mart litigation.

If companies were not already noticing that alleged glass ceiling practices will no longer be tolerated, I think they are quickly getting the picture.